Research On The Guiding Cases To Fill The Legal Loopholes

As the country with statutory law,statutory law as a formal and traditional source of law is the primary basis for judges to sentence cases.But at the same time,with the advancement of judicial reform and the establishment of Guiding Cases System,the importance of guiding cases has gradually emerged.In the ten years since the release of the first guiding case,it has played an important role in improving the consistency,quality and justice of trials.Due to the limited cognition of legislation and changes in the social,legal loopholes are inevitable,so the filling of legal loopholes has always been a concern of every country under the rule of law.Through the study of judicial practice in China,it can be found that referencing guiding cases plays an indispensable role in filling legal loopholes.First of all,we can’t deny the fact that hard cases and legal loopholes are inevitable.Filling legal loopholes affects the stability of legal order.In the methods of filling the legal loopholes in China,neither legislative interpretation nor judicial interpretation can fundamentally and properly solve the problem of legal loopholes.Since the guiding case contains the experience of judicial practice,it is factually binding.Compared with other loophole filling methods,the guiding cases do not require a higher threshold of application.At the same time they can fill legal loopholes more fully with its vividness..Secondly,the parper analyzes the legal methods of guiding cases to fill legal loopholes,such as the method of analogy,the method of purposeful expansion,and the method of purposeful constriction.By analyzing the application of different legal methods in specific guiding cases,we will understand how the guiding cases use these methods to fill legal loopholes.At the same time,due to the guidance and reference power of the guiding cases,they provide standardized scenarios and demonstrations for the application of legal methods.In addition,the Guiding Cases System is an important innovation in the judicial field of contemporary China.in recent years,While the Case Guidance System has attracted the attention of the theoretical and practical circles since its establishment,the problems of guiding cases have also emerged in recent years.The first problem is cognitive problem caused by the ambiguity of the nature and status of the guiding cases.The second problem is institutional problems caused by the inability of the Guiding Cases System to fully meet the needs of judicial practice.The third problem is the technical problems caused by the reference and application conditions and specific application methods of guiding cases.So the judges are confused about how to use guiding cases when they deal with hard cases.The paper seeks experience from the precedent system from foreign experience.I thinly the method of filling legal loopholes in China’s guiding cases can learn from the German precedent system.In the German precedent system,only permanent precedents are fact-binding.The application technology of German precedents is different from the application technology of common law precedents.The precedents provide an authoritative basis for judges to interpret the law by explicating provisions.German precedents can be changed and improved through the interaction between the higher and lower courts.The legal method of guiding case filling in our country should follow the orientation of localization,covering case retrieval technology,case distinction technology,situational balancing technology,retrospective technology and theoretical proof technology.In the end,the paper provides suggestions for guiding cases to fill legal loopholes.First,our country should provide institutional guarantees by clarifying the effectiveness and status of guiding cases.At the same time,the improvement and implementation of guiding cases to fill legal loopholes requires the promotion of system construction.The improvement of guiding cases to fill legal loopholes requires consideration of case optimization and the quality of judges.By strengthening the interaction between case communication and coordination with legal commentary.This method will make the guiding cases more adequate and scientific,so judges will be more motivated to use guiding cases.At the same time,judges also need to master the applicable technology of guiding cases,which is inseparable from the professional judge conference system and judicial capacity building.